Marquette Law Review
Volume 47
Issue 3 Winter 1963-1964
Article 6
Personal Injury Damage Verdicts: Supreme Court
Rulings Since the Powers Rule
Horace W. Wilkie
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Horace W. Wilkie, Personal Injury Damage Verdicts: Supreme Court Rulings Since the Powers Rule, 47 Marq. L. Rev. 368 (1964).
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PERSONAL INJURY DAMAGE
VERDICTS: SUPREME COURT RULINGS
SINCE THE POWERS RULE
HORACE W. WILKIE*
In the Powers case,' the Wisconsin Supreme Court ruled:
*.. that where an excessive verdict is not due to perversity
or prejudice, and is not the result of error occurring during
the course of trial, the plaintiff should be granted the option
of remitting the excess over and above such sum as the court
shall determine is the reasonable amount of plaintiff's
damages,
2
or of having a new trial on the issue of damages.
In that case a jury had returned a verdict of $1,500 for pain and
suffering and $5,000 for permanent injuries. The trial court found that
there was no proper expert medical testimony to support the finding
of permanent injury and reduced that figure to zero. On appeal, the
supreme court held that the medical testimony was sufficient to support the finding of permanent injury but concluded that the award
of $5,000 was excessive. The court stated:
Based upon a careful review of all the pertinent evidence
bearing upon permanent disability, we determine that $3,000
is a reasonable sum to award to the plaintiff for permanent
disability. Therefore, the plaintiff should be accorded the option of accepting judgment for such sum, together with the
sum of $1,500 awarded for pain and suffering, or a total of
$4,500, or of having a new trial confined to the issue of damages.3
In adopting this rule, the court went back to the earlier rule of
Corcoran v. Harran4 and Baker v. Madison.5 It overturned the prior
practices that had developed where awards were found to be excessive, under which the trial court could follow one of three alternatives: (1) The court could set aside the verdict as excessive and determine the least amount a properly instructed jury could find, and
then give plaintiff an option to either get a new trial or take the reduced amount;' or (2) the court could determine the largest amount
*Justice, Wisconsin Supreme Court
1 Powers v. Allstate Ins. Co., 10 Wis. 2d 78, 102 N.W. 2d 393 (1960).
2 Id. at 91, 102 N.W. 2d at 400.
3 Id. at 92, 102 N.W. 2d at 400.
4 55 Wis. 120, 12 N.W. 468 (1882).
562 Wis. 137, 22 N.W. 141 (1885). See Ghiardi, Personal Injury DacnagesExcessive or Inadequate Awards, Wis. Continuing Legal Ed., Vol. 1, No. 2,
pp. 27-53, at 34 (1961).
r Stangarone v. Jacobs, 188 Wis. 20, 205 N.W. 318 (1925) ; Peterson v. Western
Casualty & Surety Co., 5 Wis. 2d 535, 93 N.W. 2d 433 (1958).
1963-1964]
PERSONAL INJURY DAMAGE VERDICTS
that such a jury could find and grant defendant an option to pay
that amount or get a new trial ;7 or (3) it could grant alternative
options if plaintiff does not exercise his option then defendant may
and if neither does then there is a new trial. 8
'The same three alternatives were available where a verdict was
found to be inadequate."
The Powers rule had been anticipated by a dissent by Justice
Thomas Fairchild in the case of Genrich v. Schrank,10 where he stated:
But where there has been no error or perversity, there would
be no injustice to defendant in giving plaintiff an option of a
new trial or judgment for an amount fixed by the court as a
fair and reasonable award under the evidence. Such a rule
would give greater protection to the plaintiff. While he could
still choose a new trial, his alternative would be more liberal
to him than under the present rule. It would sufficiently protect the defendant from the excessive award."'
Following Powers, there was much concern about what the decision would mean in terms of the number of jury verdicts, reassessed
and modified. Plaintiffs feared that there would be an avalanche of
cases in which defendants sought and the courts ordered reductions
in jury verdicts. Defendants anticipated that verdicts would be increased. The purpose of this article is to analyze every Wisconsin
Supreme Court case since Powers which in any way has involved
any question of the excessiveness or inadequacy of a personal injury
damage verdict and any action by a trial court or the supreme court
with respect thereto. In substance, the article inquires into what has
been the effect of Powers and what have the related supreme court
rulings been since that important decision.
Modification of Spleas Case
It is important to note that Powers deals only with questioned
verdicts where there is no finding of perversity or where the excessive or inadequate verdict is in no way due to error occurring during
the course of trial. Now comes the very recent case of Spleas v. Milwaukee & Suburban Transport Corp.,12 in which the supreme court
speaking through Justice Gordon modified the Powers rule so as to
7
Risch v. Lawhead, 211 Wis. 270, 248 N.W. 127 (1933); Murphy v. Hotel
Pfister, 245 Wis. 211, 13 N.W. 2d 927 (1944); Landrath v. Allstate Ins. Co.,
259 Wis. 248, 48 N.W. 2d 485 (1951); Dittman v. Western Casualty & Surety
Co., 267 Wis. 42, 64 N.W. 2d 436 (1954).
8Brown v. Montgomery Ward, 221 Wis. 628, 267 N.W. 292 (1936); Blaisdell
v. Allstate Ins. Co., 1 Wis. 2d 19, 82 N.W. 2d 886 (1957); Butts v. Ward,
227 Wis. 387, 279 N.W. 6 (1938).
9Gosczinski v. Carlson, 157 Wis. 551, 147 N.W. 1018 (1914) ; Reuter v. Hicknan,
Lauson & Diener Co., 160 Wis. 284, 151 N.W. 795 (1915); Risch v. Lawhead,
supra note 7; Bohlman v. Nelson, 5 Wis. 2d 77, 92 N.W. 2d 345 (1958).
10 6 Wis. 2d 87, 93 N.W. 2d 876 (1959).
21 Id. at 94, 93 N.W. 2d at 879.
12 21 Wis. 2d-, 124 N.W. 2d -, (1963).
MARQUETTE LAW REVIEW
[Vol. 47
apply the rule even where there is prejudicial error committed on the
trial, but where such error is related directly to damages and where
any prejudice affecting the jury award can be accommodated by applying the Powers rule. In that case a plaintiff was awarded $15,000
by a jury for his permanent injuries, pain and suffering and future
medical expense. The supreme court ruled that there was prejudicial
error in the trial court's instructions on allowing damages for future
medical and hospital expense. The court stated:
We have concluded that even though the excessive verdict
may be the result of a prejudicial error committed during the
course of the trial, the Powers rule may nevertheless
be em13
ployed where such error directly relates to damages.
Procedure for Applying Rule in Trial Court
The exact procedure to be followed by a trial court where it is
contended that a verdict is excessive and the court so finds under
the Powers rule was spelled out in detail in Lucas v. State Farm Mut.
Automobile Ins. Co., 4 where the court outlined the following steps:
1. On motions after verdict the trial court should enter his
decision which includes a determination that the jury award
is excessive but not due to perversity or prejudice, and is not
the result of error occurring during the course of the trial. The
decision should also include a determination by the trial court
of what amount he considers reasonable. The decision should
direct a new trial on the issue of damages unless the plaintiff
elects to take judgment for the lesser amount.
2. A formal order should then be entered by the trial court
setting aside the verdict (rather than changing the jury's
award in the verdict) and granting a new trial on the issue
of damages, but providing that the plaintiff, in lieu thereof
may have a judgment entered for the reduced amount if he
notifies the court within the time specified by the court of his
election to take the reduced amount and remits the difference
between the reduced amount and the jury award. Such an order may provide for an extension of the option by a specified
time after remittitur in the event an appeal is taken.
3. The plaintiff may then appeal from this order; if he so desires and if it is necessary the plaintiff should first ask the
trial court to extend the time for exercising his option to cover
the period of his appeal.
4. If no appeal is taken and the plaintiff does not elect to
take judgment for the lesser amount, the case will proceed
in the normal course of events to a new trial.
5. If an appeal is taken the supreme court will enter its decision thereon and remit the cause either affirming the new
trial order with accompanying option or reversing or modifying it.
13
14
Id. at -, 124 N.W. 2d at -.
17 Wis. 2d 568, 117 N.W. 2d 660 (1962).
1963-1964]
PERSONAL INJURY DAMAGE VERDICTS
6. If no appeal is taken and the plaintiff does elect to take
judgment for the reduced amount, judgment shall then be
entered accordingly and the defendant may either appeal from
that judgment or seek to satisfy it. 15
The Rule of Plesko
In Plesko v. Milwaukee,:6 a personal injury case has been appealed by the defendant. In that case the supreme court ruled that
on an appeal by the defendant, plaintiff on motion for review was
entitled to raise the question of damages even where the plaintiff
has already accepted the option given by the lower court to take a
reduced amount for damages. The court said:
In Burmek v. Miller Brewing Co. (1961), 12 Wis. 2d 405, 417,
107 N.W. 2d 583, we held that where a plaintiff is given an
option to accept a reduced amount of damages or a new trial
limited to damages, his acceptance of the reduced damages
precludes his seeking a review of the trial court's determination of the damage issue.
Upon further consideration of the matter a majority of this
court conclude that this rule announced in the Burmek Case
should be limited to the situation where the party awarded
damages appeals. The majority further hold that when an
opposing party appeals, the party who has accepted the option
to take judgment for such a reduced amount of damages may
nevertheless have a review on appeal of the trial court's determination of the damage issue. If it is determined on such
review, however, that no error was committed by the trial
court's disposition of the damage issue, such party's prior
acceptance of judgment for the reduced amount will be affirmed unless the result of the principal appeal requires otherwise.' 7
On the other hand, in a case where the plaintiff has accepted an
option and where no appeal has been taken by the defendant, there
can be no appeal then by the plaintiff and no supreme court review
of the lower court's reduction in damages.
Does the Powers Rule Violate the ConstitutionalRights of
Either the Defendant or Plaintiff to a Trial by Jury?
This precise question has been considered by the Wisconsin Supreme Court. As to the defendant's rights, the court held there was
no violation in the Powers case itself.' 8
In the Lucas case, 19 the court held there was no violation of the
plaintiff's constitutional rights.
15 Id. at 577, 117 N.W. 2d at 665.
16 19 Wis. 2d 210, 120 N.W. 2d 130 (1963).
17 Id. at 220, 120 N.W. 2d at 135.
1 Powers v. Allstate Ins. Co., supra note 1.
19 Lucas v. State Farm Mut. Automobile Ins. Co., supra note 14.
MARQUETTE LAW REVIEW
[Vol. 47
In Powers the court upheld the constitutionality of the Powers
procedure and stated:
The United States Supreme Court in a unanimous opinion by
the first Mr. Justice Harlan held in Arkansas Valley Land
& Cattle Co. v. Mann (1889), 130 U.S. 69, 9 Sup. Ct. 458, 32
L. Ed. 854, that such practice of granting the plaintiff the option to remit the excess amount by which a verdict is determined by the court to be excessive does not violate the right
to trial by jury guaranteed by the Seventh amendment of the
United States constitution. A number of the state courts have
directly passed upon the constitutional issue and have upheld
the rule of basing the amount to be remitted upon the excess
over and above a reasonable amount. Among the cases so
holding are: Sewell v. Sewell (1926), 91 Fla. 982, 109 So. 98;
Burdict v. Missouri Pacific R. Co. (1894), 123 Mo. 221, 27 S.W.
453; and Alter v. Shearwood (1926), 114 Ohio St. 560, 151
N.E. 667.
As previously mentioned herein, it was acknowledged that
courts had the power to set aside excessive verdicts and grant
new trials long before either the federal or state constitutions
were adopted. If a court has the power to hold a verdict for a
certain amount excessive, it necessarily follows that it has the
power to determine an amount which is not excessive. As the
Missouri court well stated in Burdict v. Missouri Pacific R.
Co., supra (p. 242), "If it possesses the power to say the one
thing, it possesses the power to say the other." Therefore,
when a court determines that a certain amount is a reasonable
amount to allow for plaintiff's unliquidated damages, it2 0is the
equivalent of holding that such amount is not excessive.
In Lucas, the trial court found a jury verdict of $8,000 to be excessive and determined that $4,300 would be a fair award. In reply
to the plaintiff's contention that his constitutional right to a trial by
jury had been denied, the court said:
...It happens that, in form, the trial court did order a change
in the amount of the award made by the jury. In substance,
however, the trial court gave plaintiff the choice between a
new trial and accepting the court-determined figure. Plaintiff
was free to have a second jury make an award if she so desired. No right of plaintiff to trial by jury was violated by the
judge's determining that $4,300 was a fair award because
plaintiff was free to reject it. Plaintiff was deprived of the
award made by one jury, but that award was found by the
court to be excessive. Plaintiff's right to have a second jury
make a new award was protected. The power of a court to set
aside a jury verdict for damages because of being excessive
has been recognized since long before the adoption of the
federal or state constitution,
and does not violate plaintiff's
2
right to a trial by jury. 1
20
21
Powers v. Allstate Ins. Co., supra note 1, at 91.
Lucas v. State Farm Mut. Automobile Ins. Co., supra note 14, at 576.
1963-1964]
PERSONAL INJURY DAMAGE VERDICTS
Does PowersRule Apply to Inadequateas Well as
Excessive Verdicts?
Since Powers, there has been no case in which the supreme court
has found a questioned jury verdict to be inadequate and has increased the award and applied the Powers rule to the additur.
Neither has there been such an additur by any trial court in any
case appealed to the supreme court. However, the court has declared
that in a proper case the Powers rule should apply to an inadequate
verdict just as well as to an excessive verdict. Thus in Cordes v.
Hoffman,2 2the court stated:
The plaintiffs contend the damages awarded Mary E. Cordes
were inadequate and ask this court under Powers v. Allstate
Ins. Co. (1960), 10 Wis. 2d 78, 102 N.W. 2d 393, to extend an
option for an additur to the defendants in the amount determined by this court. If this court agreed with the plaintiffs
that the amount of damages was inadequate it could exercise
its power to determine the reasonable amount of damages
under the Powers case and grant a new trial with an option to
the defendants to accept judgment against them for such
amount. See Rupp v. Travelers Indemnity Co. (1962), 17 Wis.
2d 16, 115 N.W. 2d 612.23
In Podell v. Smith,24 the plaintiff suffered a painful monkey bite
of her hand with accompanying disability and resulting surgery. The
supreme court ruled that the jury's award of $650 for this personal
injury was "woefully inadequate" noting that there was prolonged
disability that not only interfered with her business but also prevented her from doing her housework and from caring for her personal needs. Under the court's discretionary power of reversal under
section 251.09 of the Wisconsin statutes, the court ordered a new
trial on damages.
Does PowersRule Apply to PunitiveDainzges as Well
as CompensatoryDamages?
25
The court so ruled in the Malco case.
Experience Since the PowersCase: Supreme Court Rulings on
Contested PersonalInjury Damage Verdicts
All of the cases in which a jury verdict for personal injuries has
been questioned in the trial court on the grounds that the verdict is
either inadequate or excessive, and where there has been an appeal
to the supreme court in which the issue of excessiveness or inadeWis. 2d 236, 120 N.W. 2d 137 (1963).
Id. at 241, 120 N.W. 2d at 140. See also Wendel v. Little, 15 Wis. 2d 52, 112
22 19
23
N.W. 2d 172 (1961) ; Dodge v. Dobson, 21 Wis. 2d 200. 124 N.W. 2d 97 (1963);
Hernke v. Northern Ins. Co., 20 Wis. 2d 352, 122 N.W. 2d 395 (1963).
24 1 Wis. 2d 583, 106 N.W. 2d 332 (1960).
25 Malco v. Midwest Aluminum Sales, 14 Wis. 2d 57, 109 N.W. 2d 516 (1961).
MARQUETTE LAW REVIEW
[Vol. 47
quacy of damages is presented may be categorized to show the extent to which the Powers rule has been applied to such cases.
(1) Cases where the jury award was found to be excessive by the
trial court and a reasonable amount was determined by the trial
court with the option given to the plaintiff to receive a new trial or
26
to take the reduced amount and the supreme court affirmed.
(2) Cases where the jury award was found to be excessive by the
trial court and a reasonable amount was determined by the trial
court with the option given to the plaintiff to receive a new trial or
take the reduced amount and the supreme court reversed, and rein27
stated the jury verdict.
(3) Cases where the jury award was affirmed by the trial court
against the claim that it was excessive and the supreme court af28
firmed.
(4) Cases where the jury award was affirmed by the trial court
but the supreme court found the verdict excessive and, applying
29
Powers rule, determined a reasonable amount.
In Powers, the supreme court said the jury verdict was excessive
"in that the evidence will not support the same." 30
The supreme court noted in Beijer v. Beijer that it was the trial
court's opinion "that the damages were so high that he was astonished at the amount and still the amount did not shock the conscience of the court."' 3 1 The court considered the jury's award of
$4,250 to the plaintiff for permanent injuries sustained by her and
stated:
26Puhl v. Milwaukee Auto. Ins. Co., 8 Wis. 2d .343, 99 N.W. 2d 163 (1959);
Burmek v. Miller Brewing Co., 12 Wis. 2d 405, 107 N.W. 2d 583 (1961) ; Gustafson v. Bertschinger, 12 Wis. 2d 630, 108 N.W. 2d 273 (1961); Lucas v.
State Farm, 17 Wis. 2d 568, 117 N.W. 2d 660 (1962) ; Plesko v. Milwaukee,
19 Wis. 2d 210, 120 N.W. 2d 130 (1963); La Vallie v. General Ins. Co., 17
Wis. 2d 522, 117 N.W. 2d 703 (1962); Lee v. Milwaukee Gas Light Co., 20
Wis. 2d 333, 122 N.W. 2d 374 (1963).
27 Makowski v. Ehlenbach, 11 Wis. 2d 38, 103 N.W. 2d 907 (1960); DeLong
v. Sagstetter, 16 Wis. 2d 390, 114 N.W. 2d 788 (1962) ; O'Brien v. State Farm,
17 Wis. 2d 551, 117 N.W. 2d 654 (1962).
28Rude v. Algiers, 11 Wis. 2d 471, 105 N.W. 2d 825 (1960) ; Reddick v. Reddick,
15 Wis. 2d 37, 112 N.W. 2d 131 (1961) ; Springen v. Ager Plumbing & Heating,
Inc., 19 Wis. 2d 487, 120 N.W. 2d 692 (1963); Jansa v. Mil. Auto Mut. Ins.
Co., 18 Wis. 2d 145, 118 N.W. 2d 49 (1962) ; Rogers v. Adams, 19 Wis. 2d 141,
119 N.W. 2d 349 (1963); Borowske v. Integrity Mut. Ins. Co., 20 Wis. 2d 93,
121 N.W. 2d 287 (1963); Thompson v. Nee, 12 Wis. 2d 326, 107 N.W. 2d 150
(1961); Dwyer v. Jackson Co., 20 Wis. 2d 318, 121 N.W. 2d 881 (1963);
Bleyer v. Gross, 19 Wis. 2d 305, 120 N.W. 2d 156 (1963) ; Erdmann v. Milwaukee Auto. Mut. Ins., 20 Wis. 2d 439, 122 N.W. 2d 430 (1963); Girtz v.
Owen and Carriers Ins. Exchange, -Wis. 2d-, -N.W. 2d- (1963).
29 Powers v. Allstate Ins. Co., 10 Wis. 2d 78, 102 N.W. 2d 393 (1960) ; Beijer v.
Beijer, 11 Wis. 2d 207, 105 N.W. 2d 348 (1960); Teufel v. Home Indemnity,
15 Wis. 2d 67, 111 N.W. 2d 893 (1961); Freuen v. Brenner, 16 Wis. 2d 445,
114 N.W. 2d 782 (1962); Albers v. Herman Mut., 17 Wis. 2d 385, 117 N.W.
2d 364 (1962); Spleas v. Milwaukee & Suburban Transport Corp., 21 Wis.
3o
31
2d-
, 124 N.W. 2d -
(1963).
Powers v. Allstate Ins. Co., supra note 1, at 87.
Beijer v. Beijer, supra note 29, at 212.
1963-19641
PERSONAL INJURY DAMAGE VERDICTS
A careful review of the record indicates that the evidence
does not warrant the amount of damages awarded by the jury
for the permanent injuries
sustained by Mrs. Beijer and that
3 2
the same is excessive.
The court went on to determine that $3,000 was a reasonable sum.
The court, in Teufel v. Home Indemnity, determined that $12,600
was "excessive in that the evidence will not support the same. "3 3
The court determined $3,000 as a reasonable sum.
In Freuen. v. Brenner the court concluded that an award of $40,000 was excessive and determined that $30,000 "would be a reason'34
able and just amount."
In Albers v. Herman Mut, the court determined that the award
of $10,000 "made for plaintiff's past and future pain, suffering, and
discomfort is excessive in that the evidence will not support the
same."35 The court determined that $6,000 would be a reasonable
SUm.
Finally, in Spleas, the court declared:
... a fair appraisal of the nature and seriousness of Spleas'
injuries does not warrant the damages assessed by the jury.
From a review of the evidence, we determine that $10,000 is a
reasonable sum to award to the plaintiff38for his damages in
this case, including his pain and suffering.
The court also said:
While we recognize that the jury's appraisal of damages should
not be disturbed in the absence of error, it is nevertheless our
duty to evaluate the testimony, and if the award is excessive even
when viewed in the light
most favorable to the plaintiff, it is our
37
responsibility to so find.
(5) Cases where the jury award was found by the trial court 'co be
not inadequate and the supreme court affirmed.38
(6) Cases where perversity or error in the trial was found by the
trial court and the Powers rule was not applied, but the trial court
ordered a new trial and the supreme court affirmed.3 9
(7) Cases where the trial court did not have the opportunity to
at 212, 105 N.W. 2d at 351.
Teufel v. Home Indemnity Co., supra note 29, at 73.
Freuen v. Brenner, supra note 29, at 452.
35 Albers v. Herman Mut., supra note 29, at 391.
36 Spleas v. Milwaukee & Suburban Transport Corp., supra note 12, at-.
37 Id. at -, 124 N.W. 2d at -.
38
Wendel v. Little, 15 Wis. 2d 52, 112 N.W. 2d 172 (1961) ; Cordes v. Hoffman,
19 Wis. 2d 236, 120 N.W. 2d 137 (1963); Dodge v. Dobson, 21 Wis. 2d 200,
124 N.W. 2d 97 (1963); Hernke v. Northern Ins. Co., 20 Wis. 2d 352, 122
N.W. 2d 395 (1963).
39 Dykstra v. Cudahy Brothers Co., 13 Wis. 2d 275, 108 N.W. 2d 526 (1961);
Bublitz v. Lindstrom, 17 Wis. 2d 608, 117 N.W. 2d 636 (1962).
321d.
33
34
MARQUETTE LAW REVIEW
IVol. 47
apply the Powers rule, and the supreme court therefore remanded to
give the trial court opportunity to apply the rule.40
(8) Cases where the supreme court exercised its discretionary power
to call for a new trial under section 251.09 of the Wisconsin statutes
where it was satisfied that the damages were inadequate, where there
was other error, and where there probably would be a miscarriage of
justice unless a new trial were granted. 41
Basic Rules Followed by Trial Court in Determining
Whether Verdict is Excessive
The rules applied by the trial court in determining whether a jury
verdict is excessive remain unchanged under the Powers rule.
(1) "In considering whether the jury's appraisal of damages for
pain, suffering, and disability is excessive, we must of course view
the evidence in the light most favorable to plaintiff. '42
(2) "In analyzing the testimony as to the existence of any permanency of the injury or the likelihood that the injured person will
endure future pain and suffering before recovery may be allowed therefor, there should be competent objective medical findings and the unsupported subjective statements of the injured party are not sufficient." 43
(3) Is the verdict too large to be supported by the evidence? What
sum will the evidence reasonably support ?44
In Makowski v. Ehlenbach the court stated:
Since it is for the jury, and not for the court, to fix the amount
of the damages, their verdict in an action for unliquidated
damages will not be set aside merely because it is large or because the reviewing court would have awarded less. Full compensation is impossible in the abstract, and different individuals
will vary in their estimate of the sum which will be a just pecuniary compensation. Hence, all that the court can do is to see that
the jury approximates a sane estimate, or, as it is sometimes
said, see that the results attained do not shock the judicial conscience.4 5
(4) "A jury may mistakenly assume (without supporting evidence)
that there have been, or will be certain effects from an injury or fix
compensation for sufficiently proved effects of injury at a figure which
is beyond the range of reasonably debatable amounts. In a case where
it is clear to the court that the amount awarded must necessarily reflect
Hansen v. Oregon, 11 Wis. 2d 399, 105 N.W. 2d 815 (1960).
v. Lund, 18 Wis. 2d 633, 119 N.W. 2d 334 (1963).
4 Kincannon v. National Indemnity Co., 5 Wis. 2d 231, 233, 92 N.W. 2d 884,
40
41 Mainz
2
885 (1958).
43Lucas v. State Farm Mut. Auto Ins. Co., 17 Wis. 2d 568, 572, 117 N.W. 2d
660, 662 (1962). See also Diemel v. Weirich, 264 Wis. 265, 58 N.W. 2d 651
(1962).
44Makowski v. Ehlenbach, 11 Wis. 2d 38, 103 N.W. 2d 907 (1960); Blong v.
Ed. Schuster & Co., 274 Wis. 237, 79 N.W. 2d 820 (1956) ; Blaisdell v. Allstate
Ins. Co., 1 Wis. 2d'19, 82 N.W. 2d 886 (1957).
451Makowski v. Ehlenbach, supra note 44, at 42.
1963-1964]
PERSONAL INJURY DAMAGE VERDICTS
an allowance for the effects of injury not sufficiently proved or reflect
a rate of compensation which is beyond reason, the court will declare
the damages excessive. Where the question is a close one, it should be
46
resolved in favor of the verdict."
(5) Each case must be considered on its own facts and record and
great care must be exercised in considering other cases with comparable
injuries.
Likewise, a comparison with other verdicts at best can only be
an imperfect analogy affording some guidelines
to the solution
4 7
but not necessarily determining the result.
(6) Medical opinions must be expressed at least in terms of probabilities, not mere possibilities.- s
Additional Rules Followed by Supreme CourtReviewing
Verdicts DeclaredExcessive by a Trial Court and Where a
Reasonable Amount has been Determined
In addition to all of the above rules for reviewing personal injury
verdicts the supreme court has one additional rule for reviewing a verdict which the trial court has found to be excessive and in turn has
fixed what it considers to be a reasonable amount.
Where a trial judge has reviewed all of the evidence and has
found a jury verdict awarding damages to be excessive and has
fixed a reduced amount therefor, and has determined that there
should be a new trial on damages unless the plaintiff takes his
option for a judgment on the reduced amount, this court will
reverse his directions "only if we find an abuse of discretion on
the part of the trial court." Makowski v. Ehlenbach (1960),
11 Wis. 2d 38, 44, 103 N.W. 2d 907; Boughton v. State Farm
Mut. Automobile Ins. Co. (1959), 7 Wis. 2d 618, 97 N.W. 2d
401; Puhl v. Milwaukee Automobile Ins. Co. (1959), 8 Wis.
2d 343, 99 N.W. 2d 163. 9
Conclusions
In summary, several conclusions may be drawn from the supreme
court decisions since Powers.
(1) Since Powers,the supreme court has not been asked to review
damage verdicts any more frequently than before the rule.
(2) The supreme court changes a verdict only very infrequently
and the number of times the court has done so is no greater since
Powers than before.
Id. at 42, 103 N.W. 2d at 911.
47Springen v. Ager Plumbing & Heating, Inc., 19 Wis. 2d 487, 493, 120 N.W.
2d 692, 695 (1963).
4s Estate of Kitz, 13 Wis. 2d 49, 108 N.W. 2d 116 (1961) ; Hintz v. Mielke, 15
Wis. 2d 258, 112 N.W. 2d 720 (1961); Bleyer v. Gross, 19 Wis. 2d 305, 120
N.W. 2d 156 (1963).
49 Lucas v. State Farm Mut. Auto Ins., supra note 14, at 571, 117 N.W. 2d 660,
662 (1962).
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[Vol. 47
(3) The supreme court gives great weight to a careful analysis of
the award by the trial court and most often goes along with the trial
court when he has made such an analysis.
(4) Since Powers there undoubtedly are fewer new trials on damage
questions because the trial court decision and the current practice of
setting a reasonable figure is much more likely to be acceptable to the
parties than the former practice where the figure was either too low
to please the plaintiff or too high to please the defendant. 50
50 Commenting on the practice since Powers and the effect of the rule, supreme
court said in Spleas v. Milwaukee Suburban Transport Corp., supra note 12, at
-:
"We have found the Powers rule to be a valuable tool, both in this court
and in trial courts, to avoid unnecessary retrials."